During the
past few months I have been actively following the latest activity on the state
secrets privilege (SSP). First, I was pleasantly surprised to see that this
issue of extreme importance to our civil liberties and constitutional rights
was finally getting long-over-due and deserved attention from the media. After
all, the memories of fighting SSP in the federal courts all the way up to the
Supreme Court, holding press conferences together with the ACLU to bring needed
media attention to this draconian abuse, making the rounds in Congress to have
them address this ‘privilege’ through legislation to restrict its misuse and
abuse, are still fresh and vivid for me.

Then I
started detecting some troubling common trends showing up in media reports and
subsequently in discussions and statements within Congress. The most suspicious
of these came in the form of sanitizing major SSP abuse cases from reports put
forth by both the mainstream media and some in alternative publications. The
first invocation of the SSP by the Bush Administration was in my case. Back
then, if you had done a Google search on ‘state secrets privilege’ you would
have come up with only ‘7’ results; three of them repeats. After successfully
getting away with SSP invocation in my case, the administration opened the
flood gates for others. Now I invite you to search all the archived news
reports on SSP in the last year or so. As you will see, in every single report
in which the abuses of SSP and its history are cited, you will not find this
first case; my case. Further, if you were to look for other major abuses of
SSP, such as the Barlow Case, you will find none. The valid cases cited are
mainly limited to:

With a
note here and there on ‘NSA’ related information and the historical Reynold’s
Case from 1953.

Finally, I
decided to dig further and explore the reasons behind these significant
omissions and the accompanying information spin that seems to be packaged with
the intention of fulfilling Washington’s
objective -seeing the related campaign
and activities fail. Of course, based on my own case and experience with SSP, I
had my own theories as to why the issue was being narrowed down to certain
‘selected’ cases and interpretations; counterproductive to the objective shared
by SSP recipients and organizations who have been
truly active in seeking to have it abolished or reformed through congressional
legislation. But I was also interested in getting the opinions of those who
have been actually involved with these cases, either as plaintiffs or attorneys
representing SSP cases, or even a few trusted insiders in Congress with direct
knowledge. So I contacted several and include their views and interpretations
here.

The Congressional Angle

A well seasoned
congressional staff member connected to a well-known ‘Centrist’ office active
in the current SSP debate, who ‘insisted’ on being granted anonymity, had the
following to say:

“Contrary to what they may claim in order to
pacify the recent ‘AntiState Secrets Privilege’
movement, the Congress does not want to deal with this issue. And this applies
to members of both parties…of course we will hold a couple of hearings and show
we have investigated and reviewed cases...”

He then went on to list
several enlightening points regarding the ‘real’ factors driving the current
position on SSP:

·We
are being told that the president [Obama] will veto any proposed legislation
dealing with State Secrets Privilege…that and that no one in Congress really
wants to touch this area. Having the press limit the information to ‘War on Terror Suspects’ [Emphasis added]
helps both: the President and the reluctant Congress.

·The
cases before us are ‘selectively’
[Emphasis added] related to the War on Terror. A few Arab guys with their
claims will not bring sympathy from the majority in this country. Not in Iowa, not in Utah…you
catch my drift?

·…I
am talking about cases where there are no questions of ‘Criminality’ being
involved or covered up. We won’t touch those cases. No one will go for that.
The reasons…obvious… Being unfair or making the wrong call to determine if
someone is a terrorist does not constitute ‘criminal.’
[Emphasis Added]. As for the NSA related case, well, the new legislation took
care of that…

·By
the way, we don’t expect to see any cases of abuses of SSP by the Clinton
Administration cited anywhere. Holder’s office in the background and the
majority leaders up on the front lines are ensuring this through the media and
the NGOs.

Let me recap what is being
said, the reality ‘on the ground’ here:

Like any other president
before him, and probably those who’ll come after him, President Obama is not
going to limit his presidential powers when it comes to this draconian absolute
executive power. He has made it clear to his now the majority party members and
they are set to follow his guideline on this. It is a slam dunk position with a
guaranteed ‘win’ since the minority in Congress also encourages and backs this
position.

Somehow the Executive
Branch and the Congress have managed to accomplish their objectives on SSP
through the U.S.
media. They want the reporting massaged and messaged in such a way that the
publicity on SSP is limited to only ‘select’ cases where ‘executive
criminality’ and or ‘covering up executive criminality’ will not
be an issue. Those SSP cases where the executive branch used this level of
secrecy to cover up criminal deeds would make the need for Congressional action
on SSP far greater. After all, we even have an Executive Order that
currently prohibits secrecy and classification from being used by the Executive
Branch in order to conceal violations of law. Of
course with the case(s) involving NSA warrantless wiretapping, as quoted
by the congressional source above, they no longer have to worry, since they
took care of it through retroactive legislation.

With cases
involving wrongful detention and abuse of those ‘wrongfully accused’ in the
government’s war on terror, it has been set up so that these cases can be
written off as ‘egregious labeling, handling and treatment’ committed
immediately following the September Eleven Attacks. Excuses such as
‘extraordinary’ circumstances, ‘bureaucratic bungling,’ and the previous
administration’s ‘excess’ have been all lined up to be used if or when SSP
makes it’s way into Congress. Further, the government also counts on bigotry to
insure that there will be no major public pressure, since the involved victims
are not (at least most) Americans, have Arabic names, and are of Muslim
background. They believe that the majority of Americans will not be sympathetic
to these plaintiffs, so there will be no problem killing any chance of
restraining the long-abused SSP through meaningful legislation.

Richard Barlow & the State Secrets Privilege

Richard Barlow, an
intelligence analyst and a former senior member of the Counter-Proliferation unit
at the CIA lost his job when he objected internally to the George H.W. Bush
Administration’s misleading Congress over Pakistan’s nuclear program. Following
Congress-ordered investigations, the inspector-general at the State Department
and the CIA concluded that Barlow had been fired as a reprisal. Further, a
final investigation by Congress' own Government Accountability Office completed
in 1997 largely vindicated Barlow.The Senate Armed Services and
Intelligence Committees concluded that Barlow was due Congressional relief in
light of unjustified DOD actions against him and cover-ups with Congress. A
relief bill was introduced but the Senate Judiciary Committee referred the
billthe Court of Federal Claims for
more "fact finding" in what is known as a Congressional Reference, in
which the Congress still remains the deciding body. For more detailed
background and related official documents on Barlow see here.

On
February 10, 2000,
in the Barlow Case before the U.S. Court of Federal Claims, CIA signed a
declaration and a formal claim of SSP. Separately, in another declaration,
Michael Hayden, Director of NSA, also formally invoked SSP. The decision by the
Court to accept the government’s broad invocation of SSP prevented Barlow from
obtaining needed facts and evidences. With the court proceedings closed to the
public, without the ability to present numerous official reports and evidence
due to the court’s acceptance of the blanket SSP, Barlow’s case lost in 2002.
For more legal background and facts on the court case see the memo by
Louis Fisher of the Congressional Research Service.

-On
‘executive criminality & cover up’:

Top U.S.
officials were allowing Pakistan
to manufacture and possess nuclear weapons, and the A.Q. Khan nuclear network
was violating U.S.
laws. Not only that - the same officials were also lying to Congress. They
were hiding these activities because the truth would have legally
obligated the U.S.
government to cut off its overt military aid to Pakistan.

The
invocation of SSP in Barlow’s case can not be easily written off as extreme
measures for extreme situations under the ‘war on terror.’

Mr.
Barlow was and is an exemplary U.S.
citizen, was awarded the CIA's Exceptional Accomplishment Award in 1988,
and was considered a
patriot for serving America’s
interests by Congress and even by the executive branch who went after him.

When I
contacted Mr. Barlow and asked for his view on the troubling trend by the media
and Congress in packaging SSP related information to mislead the public and
destroy any chance of reform, this is what he had to say:

"Long
before the Congress even begins to address issues relating to the use of SSP in
court cases involving private charities, foreigners, suspected terrorists,
or any private parties, it clearly needs to first address the use of SSP
by the Executive Branch to conceal crimes, abuses, or fraud by
the Executive Branch against the Congress itself or
against federal intelligence officers or other federal employees [who] are
the victims, and especially when it involves issues [of] Congress being
lied to or willfully misled regarding intelligence information.”

He
then added the following:

"The
media must go further than merely reporting the actions and
inactions of Congress and the courts: we need investigative reporting on
why the Congress has failed to address cover-ups of illegal activity by the
Executive Branch and what Members of Congress are responsible for thisabdication of Constitutional responsibility, particularly if Obama continues to break his
campaign promises on SSP and follow in the footsteps of Bush on this and
other national security matters.”

Sibel Edmonds & the State Secrets Privilege

I am not going to re-visit
the many-times-repeated details of the SSP invocation in my case. The legal outline
of SSP abuse by the Bush Administration invoked to cover up ‘criminal’
activities and subsequent cover up of these criminal activities can be found on
the ACLU site.
According to Ann Beeson, former legal director at the ACLU:

“The
state secrets privilege should be used as a shield for sensitive evidence, not
a sword the government can use at will to cut off argument in a case before the
evidence can be presented. We are urging the Supreme Court, which has not
directly addressed this issue in 50 years, to rein in the government's misuse
of this privilege."

In my case the government also used
the privilege to exclude members of the press from covering the court proceedings:

“The
ACLU is also asking the Supreme Court to reverse the D.C. appeals court's
decision to exclude the press and public from the court hearing of Edmonds' case in April.
The appeals court closed the hearing at the eleventh hour without any specific
findings that secrecy was necessary.”

How does this case fit the
Congress’ criteria to exclude?

-On ‘Executive criminality
& Covering it Up by invocation of SSP & abuses of classification:

In
addition to the Dickerson Case, which was characterized by
Senator Grassley as “a very major internal security breach, and a potential
espionage breach," and later
confirmed by the DOJ-IG (investigation [PDF]),
my case also involves espionage activities by several high-level U.S. officials,
both elected and appointed. Several elected officials, an official at the State
Department, and a few high-level officials in the Pentagon were involved in passing
highly classified information to foreign entities connected to Turkey, Pakistan
and Israel.
Along with the confirmed Dickerson case involving Lt. Colonel Douglas Dickerson
- who worked for Douglas Feith and Marc Grossman - other connected officials’
espionage activities were also covered up by invoking SSP.

-On Partisan Focus & Excluding other Administrations’ abuses:

·The
informationinvolved in my case covered the time
period 1996-2002. It involved two administrations and two political parties.

·Similarly,
information implicating several elected officials in major corruption cases
also involved both parties.

·I,
as the plaintiff, was and am a United States Citizen, thus my constitutional
rights were directly violated by invocation of SSP.

I believe
providing background on and an overview of these two relevant and major SSP
cases will suffice to establish the reasons behind the intentional sanitization
of SSP media coverage and other reports - so far successfully achieved by the
executive branch and the Congress.

The recent
‘supposed’ leak of a report
by the Congressional Research Service on SSP under the title of “The State
Secrets Privilege and Other Limits on Litigation Involving Classified
Information” is a very appropriate example:

“The Congressional Research Service has prepared a new
account of the state secrets privilege, which is used by the government to bar
disclosure of certain national security information in the course of civil
litigation. While the CRS report contains nothing new, it is a detailed,
dispassionate and fairly comprehensive account of the subject. A copy was
obtained by Secrecy News.”

Assuming
that this report in fact was leaked (my congressional sources claim otherwise,
but I couldn’t substantiate it definitively.), I invite the readers to review
the ‘analyzed’ and ‘cited’ cases. Please carefully review the citations, and
take note of the cases taken into examination, especially those since 2000.
Here is the list:

Not
surprisingly, the ‘leaked’ report intended for Congress based on the ‘latest’
anti State Secrets Privilege movement’s pressure on Congress to act, meets the
‘qualification’ criteria.

I
contacted Mark Zaid, a Washington attorney who has represented many
plaintiffs in SSP cases, including me, and this is what he had to say:

"The
abuse of the privilege extends beyond protecting Bush Administration policies;
it is often focused on covering up institutional misconduct and embarrassment
that transcend political lines."

Regarding
the latest media coverage, mainstream and alternative, and their either naïve
or agenda-driven case selections Mr. Zaid states:

“This provides
an incomplete portrait of the dangers of the invocation of the privilege and in
some ways fosters further abuse."

Based on the ‘sanitization’
criteria as explained by the quoted congressional staff member, it is obvious
why the major SSP cases provided above ‘could not’ be included in any
potential/future congressional discussions and or hearings. These cases cannot
be quickly written off under the excuses of ‘war on terror’ or ‘bureaucratic
bungling.’ The inclusion of them would make it difficult, if not impossible,
for Congress to shrug off SSP and let its abuses continue. The coverage of
these cases would likely garner outrage by the public majority regardless of
political partisanship.

What is not obvious is how
the press, both mainstream and alternative, has come to implement these shrewd
political objectives, serving both the Congress and the executive branch. As
for the mainstream media it doesn’t come unexpected. We have gotten used to it;
whether from their record and coverage in leading us to war in Iraq,
or the latest
revelations of their inner workings when it came to the NSA warrantless
wiretapping of Americans.

However, I am not ready to
attach the same cynical but realistic agenda to the alternative press. The
reasons may be as simple as pure ignorance, naivety, myopic partisanship, or
simply stupidity. Whatever the reasons, the likely consequences of them playing
into the hands of the political establishment and their agenda is to help us
lose the battle against SSP when we seem to finally have momentum and a strong
movement to address this draconian abuse once and for all through sound
legislation with teeth.

Sibel
Edmonds is the founder and director of National Security
Whistleblowers Coalition (NSWBC). Ms. Edmonds worked as a language specialist for the
FBI.During her work with the bureau,
she discovered and reported serious acts of security breaches, cover-ups, and
intentional blocking of intelligence that had national security implications.
After she reported these acts to FBI management, she was retaliated against by
the FBI and ultimately fired in March 2002. Since that time, court proceedings
on her case have been blocked by the assertion of “State Secret Privilege”; the
Congress of the United
States has been gagged and prevented from
any discussion of her case through retroactive re-classification by the
Department of Justice. Ms. Edmonds is fluent in Turkish, Farsi and Azerbaijani;
and has a MA in Public Policy and International Commerce from George Mason
University, and a BA in Criminal Justice and Psychology from George Washington
University. PENAmericanCenter
awarded Ms. Edmonds the 2006 PEN/Newman's Own First Amendment Award.